DENVER ­­– Colorado has thrice lost – in the Denver-based U.S. Court of Appeals for the 10th Circuit – First Amendment challenges to state law regulating political speech.

Nevertheless, such Colorado law still violates the First Amendment.

Enter the Colorado Union of Taxpayers, or CUT, ably represented by Dr. Daniel Burrows of Advance Colorado, with Challenge No. 4, now before the 10th Circuit in Colorado Union of Taxpayers v. Griswold.

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Political speech is at the core of what the First Amendment protects, and constitutional law protecting political speech can be complicated. Yet it’s not hard once you get your head around it.

For example, one form of regulation – which in this field of law means disclosure, not bans or other limits – occurs when government triggers political-committee or political-committee-like burdens for those engaging in political speech.

Such burdens can include registration in any of its forms, recordkeeping, extensive reporting, and ongoing reporting.

Subject to further inquiry, it’s constitutional for government to trigger such burdens for organizations that:

¯ Are under the control of candidates in their capacities as candidates, or

¯ Have the major purpose of nominating or electing candidates or passing or defeating ballot measures – that’s called “the major-purpose test” – and engage in more than small-scale speech.

There’s more to the analysis, yet that’s the essence of it.

By triggering such burdens beyond such boundaries, Colorado law violates the First Amendment.

So what is Colorado thinking, at least when it comes to CUT?

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For one: While acknowledging that the 10th Circuit has applied the major-purpose test in the context of speech about candidates, Colorado says – in its Aug. 18 10th Circuit brief – that the major-purpose test shouldn’t apply in the context of speech, such as CUT’s, about ballot measures.

Why? Because Colorado says (1) ballot measures on taxes and spending are common in Colorado, (2) many organizations are for or against multiple ballot measures, and (3) ballot measures are often closely aligned with candidates or public officials.

But think about it: Neither (1), (2), nor (3) supports not applying the test in the speech-about-ballot-measures context.

Otherwise, parallel assertions one could make in the speech-about-candidates context would mean the major-purpose test also shouldn’t apply in the speech-about-candidates context. But the test does apply in the speech-about-candidates context. Both the U.S. Supreme Court and the 10th Circuit have said so.

Although some federal-appellate courts and a few states’ highest courts have mistakenly held that the test doesn’t apply to state law at all, no federal-appellate court or highest-state court has held that the test applies in either the speech-about-candidates context or the speech-about-ballot-measures context but not both. In that sense, Colorado asks the 10th Circuit to split from such courts.

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Furthermore, Colorado triggers political-committee(-like) burdens for organizations engaging in only small-scale speech.

Colorado ironically defends this in the 10th Circuit, one of the courts having held this violates the First Amendment.

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For a court to reach the merits of CUT’s challenge, CUT must have standing. For CUT to have standing, there must be a credible threat that Colorado will enforce the challenged law against CUT.

Colorado asserts there’s no such threat.

To support this, Colorado says the challenged law doesn’t apply to CUT. But CUT reasonably fears it does. That suffices.

Colorado further says CUT hasn’t sought an advisory opinion from Colorado regarding whether the challenged law applies to CUT. But to have standing, CUT needn’t seek an advisory opinion.

Colorado further says:

¯ Only Colorado’s secretary of state civilly enforces the challenged law, and

¯ Colorado hasn’t said it would enforce, much less actually enforced, the challenged law against CUT or a similar organization.

But neither of these points defeats the credible threat.

Why? Because the challenged law isn’t moribund – that is, it isn’t a dead letter – and once CUT reasonably fears that the challenged law applies to CUT, one presumes a credible threat of enforcement.

Colorado also asserts CUT may not challenge the law, because it doesn’t currently chill CUT’s speech. That is, it doesn’t currently dissuade CUT from speaking. But law needn’t chill speech for challengers to have standing. Pre-enforcement challengers such as CUT can have not only

¯ “We’re-not-speaking-because-our-speech-is-chilled-by-the-challenged-law” standing, but also

¯ “We’re-speaking-while-complying-with-the-challenged-law” standing, and

¯ “We’re-speaking-or-we’ve-spoken-without-complying-with-the-challenged-law” standing.

CUT has proven it formerly had the first type of standing and currently has the third.

Now let’s see what the 10th Circuit says.

Dr. Randy Elf’s Independence Day 2022 amicus brief in Colorado Union of Taxpayers v. Griswold is at https://works.bepress.com/elf/167.

COPYRIGHT ç 2022 BY RANDY ELF